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2014 (11) TMI 320 - HC - Income TaxTransfer u/s 2(47)(vi) – Assessment of capital gains - Whether capital gains should be assessed at the hands of the assessee, who is a power of attorney holder – Held that:- The tribunal was rightly of the view that the recital contained in the registered power of attorney dated 01.09.2006 does not show that any consideration was paid to the actual owner and the assessee had acted merely as an agent - the assessee could not be treated as owner of the property sold on 23.10.2008 and therefore there was no question of computing capital gains in the hands of the assessee - There is no transfer to or enabling enjoyment of property in favour of the assessee in any manner and therefore, sub-clause (vi) of Section 2(47) of the Income Tax Act does not get attracted - Clause 21 of the power of attorney clearly reveals that no consideration was received from the power agent for appointing him as power of attorney - It also emphasised that the property right has not been handed over to the power agent - the plea of the Revenue cannot be accepted that there was an element of transfer or enabling enjoyment in favour of the assessee - The letter of the land owner subsequently issued does not come to the aid of the Department - It is the duty of the power of attorney holder to deliver the amount received for the purpose of transfer of property - no fault could be found on the part of the assessee. The circular No.495 dated 22.9.1987 also states that the legal ownership would continue with the transferor, but the property rights if it is transferred by way of power of attorney would come within the ambit of sub-clause (vi) of Section 2(47) - the terms of the power of attorney clearly show that property rights has not been transferred to the power of attorney holder and there is also no provision for enabling enjoyment – thus, the order of the Tribunal is upheld – Decided against revenue.
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